A question of fairness

With the Gujarat High Court dismissing the State government's amended appeal against the trial court's judgment in the Best Bakery case, the plea before the Supreme Court for a retrial of the post-Godhra riot cases outside the State stands vindicated.

in New Delhi

THE National Human Rights Commission (NHRC) filed a special leave petition (SLP) in the Supreme Court in August last year seeking the quashing of the trial court's judgment acquitting all the 21 accused of killing 14 Muslims in the Best Bakery incident in the wake of the Godhra train tragedy in Vadodara in March 2002. The trial court acquitted the accused citing lack of evidence, as almost all the witnesses had turned hostile in the course of the trial. The NHRC, in its petition, pleaded for a retrial in the Best Bakery case and nine other cases pending in connection with four other critical incidents in courts outside Gujarat, as it feared that free and fair trial was not possible in the State.

Although the Supreme Court has the power to transfer the trial of a case from courts in one State to another, it did not want to bypass the jurisdiction of the Gujarat High Court merely on the basis of fears, and therefore preferred to await the outcome of the State government's amended appeal in the High Court against the Best Bakery judgment. It even appointed senior advocate Harish Salve the court's amicus curiae to monitor the hearing of the case in the High Court.

With the High Court dismissing the State government's appeal (Frontline, January 16), the NHRC's fears appear to have been vindicated. The January 12 decision of the High Court has raised serious doubts about its fairness. On January 30, a Supreme Court Bench comprising Chief Justice V.N. Khare and Justices S.B. Sinha and S.H. Kapadia admitted an SLP filed by Zahira Habibullah Sheikh, the main witness to the Best Bakery murders, challenging the High Court's order.

Zahira, who admitted to turning hostile during the trial of the case under threat from one of the accused, alleged that it was a classic case of miscarriage of justice at all levels. She said that the "investigation was defective, the witnesses were not protected, public prosecutor glossed over his job of effective representation of the victims, and the Judge mechanically applied his mind to the facts of the case". She further contended that prosecution witnesses were threatened throughout by the accused and their relatives and they ultimately succumbed to the threats, especially because some of the accused had close relatives in the ruling party.

With the State government also promising the Bench that it would file an SLP against the High Court judgment within a week, the stage appears to be set for the Supreme Court to deal directly with the main petition filed by the NHRC and others seeking retrial in the Best Bakery case and nine other cases in courts outside the State. The Bench has directed the Gujarat government to supply relevant files to the amicus curiae within three weeks.

As the matter comes up for further hearing in the Supreme Court on February 27, the Gujarat High Court's judgment dismissing the State government's appeal has evoked considerable curiosity. The judgment, delivered by Justices B.J. Shethna and J.R. Vora, has not only cast aspersions on the NHRC and the human rights body Citizens for Justice and Peace which encouraged Zahira to speak out in public, but is based on apparently flawed reasoning.

The Sethna-Vora Bench quoted at length the contention of Sushil Kumar, counsel of the respondents-accused, that it was highly improper on the part of the Chairperson of the NHRC to call the trial court's judgment an instance of miscarriage of justice, a reference that might even amount to contempt of court. After raising the question posed by Kumar whether the NHRC could directly approach the Supreme Court against the trial court's acquittal, the Bench refrained from answering it, claiming that the petition was pending before the Supreme Court.

After recounting Zahira's depositions before the trial court and her statement to the police, the Bench concluded: "There seems to be a definite design and conspiracy to malign the people by misusing this witness, Zahirabibi, who is hardly 19 years old. The Bench felt that she could easily fall prey to the designs of antisocial and anti-national elements."

The Bench then went on to narrate how Zahira went out of the State on the third day of the pronouncement of the trial court's judgment and reiterated on the public platform, in the presence of others, that threats had been administered to her. From the date of deposition before the trial court on May 17, 2003 until the judgment was pronounced on June 27, 2003, she expressed no grievance nor did she complain to anyone about the threat administered to her at the time of deposition before the trial court. It was only after Indian Express spoke to her following the pronouncement of the judgment that she said she had been threatened. From all these, the Bench claimed, it had reasonable apprehension that there was a deep-rooted conspiracy by some people to misuse the witness Zahira.

The Bench refused to order a retrial on the grounds that in the Best Bakery case the prosecution had not produced proper evidence and did not know how to prove its case. "No retrial can be ordered as it may seriously prejudice the interest of the accused, whose personal liberty is at stake," the Bench concluded.

The two-judge Bench agreed with the trial court's finding that the prosecution had failed miserably to prove its case against the respondents-accused and that the police investigation in the case had been faulty. It said the police were not able to identify the real culprits and had instead accused innocent people who had saved the lives of about 65 to 70 muslims of the area, by preparing false documents and statements of witnesses. Having said this, the Bench saw a link between the outcome of the case and what it felt was an "anti-Gujarat" campaign in the rest of the country.

The Bench referred to the Narmada Bachao Andolan' s (NBA) petition in the Supreme Court against the construction of the Sardar Sarovar project (SSP), as an example of how in the name of development, and through an ex parte ad interim order, they caused huge losses, running into thousands of crores of rupees, to the State. "Ultimately, such huge loss had to be suffered by the people of the State for no fault of theirs. Gujarat is very much part and parcel of our nation and any loss to the State means loss to the nation," the Bench said. Although the Supreme Court dismissed the NBA's petition, the Sethna-Vora Bench seemed to be unhappy with the granting of an interim stay by the apex court on the construction of the dam during the hearing of the case. The propriety of the High Court questioning the correctness of a Supreme Court order, while hearing another matter is debatable.

While making a plea for communal harmony in the State, the Bench said: "It is most unfortunate that only a few handful of people are indulging in dirty tactics and wrongly defaming the State and its people for ulterior motives and reasons." The High Court seems to have considered the plea for justice in the riot cases as an attack on the pride of the State and its people.